808 S.W.2d 379 (Mo. 1991), 73222, Rodriguez v. General Acc. Ins. Co. of America

Docket Nº73222.
Citation808 S.W.2d 379
Party NameGail and Matias RODRIGUEZ, Appellants, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Respondent.
Case DateMay 03, 1991
CourtSupreme Court of Missouri

Page 379

808 S.W.2d 379 (Mo. 1991)

Gail and Matias RODRIGUEZ, Appellants,

v.

GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Respondent.

No. 73222.

Supreme Court of Missouri, En Banc.

May 3, 1991

Page 380

Carrie L. Kmoch, St. Louis, for appellants.

Eugene K. Buckley, John S. McCollough, St. Louis, for respondent.

ROBERTSON, Judge.

This case involves the underinsured motorist coverage of an automobile insurance contract. Appellants, Gail and Matias Rodriguez, appeal the entry of summary judgment in favor of the defendant, General Accident Insurance Company of America (General Accident), claiming that the underinsured motorist coverage of the insurance contract between the parties is ambiguous. Relying on that ambiguity, the Rodriguezes urge that this Court should apply an "objective reasonable expectation" standard to find that their underinsured motorist coverage is excess coverage and that they are entitled to the limits of that coverage irrespective of payments received from the tortfeasor. They also contend that they are entitled to stack the underinsured motorist coverage.

The Court of Appeals affirmed the trial court's judgment. We granted transfer to consider this case together with Sisco v. American Family Mutual Insurance Co., 806 S.W.2d 409 (Mo. banc 1991). Mo. Const. art. V, sec. 10. We have jurisdiction. Following oral argument, we determined that the cases were significantly different and warranted separate consideration. The judgment of the trial court is affirmed.

I.

On September 11, 1987, appellant Gail Rodriguez received injuries when the vehicle she was driving collided with a vehicle operated by John Fruehwirth. Fruehwirth's insurance company paid Rodriguez $50,000, the limits of liability of Fruehwirth's insurance policy. Rodriguez sought the balance of her damages from her insurance carrier, General Accident, under the policy's "underinsured motorist coverage."

The face sheet of the policy in question shows various coverages for two automobiles including underinsured motorist coverage with a limit of $50,000 on each vehicle. The face sheet also reveals that General Accident did not charge an additional premium for the underinsured motorist coverage. The salient provisions of the

Page 381

Underinsured Motorist Coverage Endorsement are as follows:

Underinsured Motorist Coverage

INSURING AGREEMENT

A. We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "underinsured motor vehicle" because of "bodily injury;"

1. Sustained by an "insured";

* * * * * *

C. "Underinsured motor vehicle" means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.

* * * * * *

LIMIT OF LIABILITY

A. The limit of liability shown in the schedule for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:

1. "Insureds";

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident

However, the limit of liability shall be reduced by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under part A of this policy.

(Emphasis added).

General Accident declined to pay citing the contractual language. The Rodriguezes...

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